Merits Stripping

As the debate rages about the power and wisdom of Congress to “strip” federal courts of jurisdiction to adjudicate particular controversial federal issues, the discussion either ignores another means of constricting the power and influence of the courts. That is the distinct act of “merits stripping.” Merits stripping eliminates, limits, or diminishes enforceable substantive rights and the merits of claims brought to enforce those rights. Merits strips diminish the amount of real-world actors and conduct subject to legal duties and protected by legal rights. Merits striping limits who can sue whom over what conduct. Merits strips can target statutory or constitutional rights and can be affected by the legislative, executive, or judicial departments, acting individually or in concert. A “strip” occurs whenever the scope of legal rights (and the legal duties those rights impose on others) falls below some baseline of preexisting law or normative preference. Unfortunately, courts and commentators often conflate merits stripping with true jurisdiction stripping. But they are necessarily distinct concepts and such conflation confounds our ability to understand both. Three differences loom. First, while jurisdiction strips shift litigation out of federal court and into another forum (presumably state courts), merits strips eliminate enforceable rights altogether, in any forum. Second, the manner of litigating and resolving legal and factual issues will be different, depending on whether the “stripping enactment” being applied in court targets merits or jurisdiction; this distinction between merits stripping and jurisdiction stripping is a sub-category of the broader differences between judicial jurisdiction and substantive merits. Third, and most importantly, the structural and constitutional controversy surrounding the power to jurisdiction strip does not apply to merits stripping. Congress clearly has the power to redefine statutory rights, including narrowing those rights; courts clearly have the power to define constitutional rights, including narrowing those rights. One might disagree with the resulting scope of federal rights. But one cannot question the basic power to define those rights. This article defines and examines multiple examples of merits stripping of federal statutory and constitutional rights. It then considers the differences between merits stripping and jurisdiction stripping and how those differences play out in court. Ultimately, distinguishing these concepts is essential to understanding the operation of federal law in the federal courts

The Economics of the Infield Fly Rule

No sports rule has generated as much legal scholarship as baseball\u27s Infield Fly Rule. Interestingly, however, no one has explained or defended the rule on its own terms as part of the internal rules and institutional structure of baseball as a game. This Article takes on that issue, explaining both why baseball should have the Infield Fly Rule and why a similar rule is not necessary or appropriate in seemingly comparable, but actually quite different, baseball situations., The answer lies in the dramatic cost-benefit disparities present in the infield fly and absent in most other game situations. The-infield fly is defined by four relevant features: (1) the significant disparity of costs and benefits inherent in that play that overwhelmingly favors one team and disfavors the other team; (2) the favored team has total control over the play and the other side is powerless to stop or counter the play; (3) the cost-benefit disparity arises because one team intentionally fails (or declines) to do what ordinary rules and strategies expect it to do; and (4) the extreme cost-benefit disparity incentivizes that negative behavior every time the play arises. When all four features are present on a play, a unique, situation-specific limiting rule becomes necessary; such a rule restricts one team \u27s opportunities to create or take advantage of a dramatic cost-benefit imbalance, instead imposing a set outcome on the play that levels the playing field. The Infield Fly Rule is baseball\u27s paradigmatic example of a limiting rule. By contrast, no other baseball situation shares all four defining features, particularly in having a cost-benefit disparity so strongly tilted toward one side. The cost-benefit balance in these other game situations is more even; thus, these other situations can and should be left to ordinary rules and strategies

Moral Panics and Body Cameras

This Commentary uses the lens of moral panics to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing any body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics

Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace

On June 26, 2015, the Supreme Court of the United States ruled in Obergefell v. Hodges that prohibitions on same-sex marriage violate the Fourteenth Amendment. In hindsight, the decision seems inevitable, the culmination of a precisely two-year race towards marriage equality that began with the Court’s 2013 invalidation of the federal Defense of Marriage Act on June 26, 2013. Federal trial and appellate courts were almost uniform in declaring state bans on same-sex marriage unconstitutional, and the Supreme Court denied certiorari or stays of judgment in all of those cases. Additionally, high-ranking public officials in several states gave up their opposition to marriage equality, ordering the issuance of licenses to same-sex couples even before all litigation had concluded. Alabama represented the glaring exception

Congress and Universal Injunctions

As the judicial and scholarly debate rages over the power of federal courts to issue universal or non-particularized injunctions, this paper explores the role of Congress in ending this controversy. It considers the details, wisdom, and efficacy of five legislative proposals to eliminate or limit universal/non-particularized injunctions; it concludes that one approach resolves the problem—a flat and unequivocal prohibition on injunctions that protect anyone other than the plaintiffs